Director of Public Prosecutions, Northern Cape v Swarts and Another

• Jurisdiction: http://justis.com/jurisdiction/166,South Africa
• Judge: Nxumalo J, Stanton AJ and Kgopa AJ
• Judgment Date: 07 October 2022
• Counsel: JJD Rosenberg for the appellant. R Ishmael for the first respondent. JJ Schreuder for the second respondent.
• Hearing Date: 08 August 2022
• Citation: 2023 (1) SACR 101 (NCK)
• Court: Northern Cape Division
• Docket Number: KS 19/2016

Stanton AJ (Nxumalo J and Kgopa AJ concurring):

Introduction

[1] The respondents were arraigned before His Lordship Matlapeng AJ, in the Kgalagadi Circuit Court, in Kathu, on the following charges:

[1.1]

Contravention of s 3 of the Firearms Control Act 60 of 2000 (the FCA), the unlawful possession of a firearm;

[1.2]

Contravention of s 90 of the FCA, the unlawful possession of ammunition; and

[1.3]

Murder, read with the provisions of s 51(1) of the Criminal Law Amendment Act 105 of 1997.

[2] The respondents, without giving evidence, were acquitted on all the charges on 26 May 2017.

[3] Subsequent to the acquittal, the appellant applied to the trial court to have certain questions of law reserved in terms of the provisions of s 319 of the Criminal Procedure Act 51 of 1977 (the CPA). This application was dismissed on 26 February 2018.

[4] The applicant proceeded to lodge a petition to the President of the Supreme Court of Appeal (the SCA), on 23 April 2018, for leave to appeal against the dismissal of the application in terms of the provisions of s 319 of the CPA.

[5] On 23 May 2018 the SCA ordered that leave to appeal be granted to the full bench of this court.

Section 319 of the CPA

[6] Section 319(1) of the CPA stipulates:

Stanton AJ (Nxumalo J and Kgopa AJ concurring)

'Reservation of question of law

(1) If any question of law arises on the trial in a superior court of any person for any offence, that court may of its own motion or at the request either of the prosecutor or the accused reserve that question for the consideration of the Appellate Division, and thereupon the first-mentioned court shall state the question reserved and shall direct that it be specially entered in the record and that a copy thereof be transmitted to the registrar of the Appellate Division.'

[7] According to the appellant, the term 'question of law' relates to the application of a legal principle to an established set of facts and the determination of whether or not a crime has been committed. The appellant submits that the three questions of law that require determination are:

[7.1]

Whether the trial court failed to properly consider and appreciate relevant evidence or erroneously approached or treated relevant evidence presented by the state against both the respondents;

[7.2]

whether the trial court correctly appreciated and applied the legal principles relating to circumstantial evidence by not applying these legal principles under consideration to all the relevant evidence presented by the state; and

[7.3]

whether the trial court disregarded the established legal principles of liability, particularly the doctrine of common purpose, by not applying such principles to the relevant and proven evidence against the first respondent.

[8] In support of its argument that the trial court incorrectly applied various legal principles to the evidence, the appellant comprehensively lists a wide range of examples in its heads of argument. In my view, it is not necessary to traverse them here, but they can be distilled as follows, namely that the trial court failed to:

[8.1]

Properly appreciate and consider the full content of exh W in conjunction with other evidence presented by the state, and consequently failed to appreciate all the relevant circumstantial evidence;

[8.2]

properly evaluate the evidence against the second respondent, namely the cap found on the scene and the presence of the cell- phone in the vicinity of the farm, and such phone being in his possession; and

[8.3]

establish the liability of the first respondent on the evidence before it.

Applicable legal principles

[9] I turn to consider whether the questions raised by the appellant are indeed questions of law or of fact.

[10] The SCA, in the recent judgment of the Director of Public Prosecutions, Gauteng Division, Pretoria v RP (the RP judgment), [1] comprehensively

Stanton AJ (Nxumalo J and Kgopa AJ concurring)

dealt with the legal principles relating to the application of s 319 of the CPA. In the RP judgment, the state sought to reserve four questions, all pertaining to the evaluation of evidence before Hattingh AJ. In its judgment, the SCA reaffirmed the judgment of Director of Public Prosecutions, Limpopo v Molope and Another [2] where the court held:

'The provisions of s 319 of the CPA are peremptory and require strict compliance, as its purpose is to limit appeals by the state. It should be mentioned that s 319 has been subjected to a detailed analysis in a number of judgments, both by this court and the Constitutional Court. Its principles have accordingly been firmly established in our law.

Two decades ago, in Director of Public Prosecutions, Natal v Magidela and Others, this court eloquently and...